David Shephard instituted this action against Kansas City Public ServiceCompany. It was alleged in the complaint that defendant owned and operatedstreet cars and buses in Kansas City, Kansas; that due to negligence in theiroperation, a street car and bus owned by the defendant collided; that plaintiffwas a passenger on the bus; and that he suffered serious and permanent injury,for which damages were sought. The defendant denied negligence and pleadedcontributory negligence. The case was tried to the court. The court foundamong other things that negligence on the part of defendant was the proximatecause of the collision; and that as the result of the accident, plaintiff's back wasinjured. Judgment was entered for plaintiff, and defendant appealed.

The judgment is challenged on the ground that plaintiff's case contravenes theusual laws of physics and science and the teachings of everyday experience.Plaintiff cannot prevail in a case of this kind if the evidence on which he reliesis in irreconcilable conflict with immutable laws of physics or is whollyinconsistent with established and uncontroverted physical facts. And wherenatural laws of physics or uncontroverted physical facts speak with such

Plaintiff alleged and testified that he was sitting on the right side of the aisle inthe bus; that the street car struck the bus on the right side of the bus; and thatplaintiff was thrown against the seat on the opposite side of the aisle and to thefloor in the aisle. In its effort to invoke the rule that plaintiff's case is inirreconcilable conflict with the usual laws of physics and science and theteachings of everyday experience, defendant argues that if plaintiff was sittingon the right side of the aisle and the bus was struck on its right side withsufficient force to throw plaintiff out of his seat, he would have been thrown tothe right rather than to the left toward the seat on the opposite side of the aisleand to the floor in the aisle. It must be conceded that the argument hasplausibility and doubtless the trial court gave it careful consideration. But thetestimony of plaintiff did not stand alone. It was corroborated in substantialrespects. There was other testimony that immediately after the impact, a manand a woman were on the floor in the aisle of the bus; that two officers of thecity found plaintiff in the aisle; that he was in a slumped-down position andwas leaning somewhat against a vacant seat; that he claimed he was injured;that the two officers or one of them and another man put their arms under thearms of plaintiff and assisted him off the bus and into a police car; that he wastaken quickly to the emergency hospital at the city hall; that a police surgeon

examined him at the hospital; that he was suffering in his back and could notstraighten up; that there was a contusion on his back; that he was treated andsent to another hospital; that x-rays disclosed a blurring in the lower section ofthe back; that he was suffering from a sacroiliac sprain; and that his injury waspermanent in character. There was other evidence but it need not be detailed.Bearing in mind the unlooked-for results, the imponderables, and the variablesdifficult of solution which frequently present themselves in cases involvingaccidents on streets and highways, it cannot be said that the evidence on whichplaintiff relied, considered in its totality, was so clearly contrary to animmutable law of physics or the teachings of every day experience, or was soclearly improbable, that the finding of the court that as a result of the accidentplaintiff's back was injured most be overturned on appeal. Cf. Klass v.Metropolitan Street Railway Co., 155 S.W. 57; Pashea v. Terminal RailroadAssociation of Saint Louis, 350 Mo. 132, 165 S.W. 2d 691; Piehler v. KansasCity Public Service Co., supra.4

The judgment is attacked on further ground that plaintiff's own testimony

affirmatively showed that he was guilty of contributory negligence andtherefore was barred from recovering. The argument is that according toplaintiff's testimony, he saw the street car approaching the bus; that he knewthere would be a collision unless one or both vehicles stopped; that he satperfectly still and failed to brace himself; and that he did not take hold of thehandhold on the seat in front of him or make any other move to protect himselfagainst the impending accident. The accident occurred quickly after plaintiffrealized or should have realized that a collision was impending. A suddenemergency presented itself. In the moment of such unexpected emergency,plaintiff was not required to exercise the judgment, the care, or the prudence forhis own protection which would have been required of him under othercircumstances when there was opportunity for reflection and deliberation.Schulz v. Chicago, Rock Island & Pacific Railroad Co., 167 Kan. 228, 205 P.2d965. And if his failure to act in the most judicious manner for his own safetywas due to want of time in which to formulate a considered judgment, he is notchargeable with contributory negligence. Hill v. Southern Kansas Stage LinesCo., 143 Kan. 44, 53 P.2d 923. Viewed in the light of these establishedprinciples, it cannot be said that as a matter of law plaintiff was guilty ofcontributory negligence and therefore is precluded from recovering.

Error is assigned upon the action of the court in denying the motion for newtrial. A motion for new trial is addressed to the sound judicial discretion of thetrial court, and its action in the denial thereof will not be reviewed on appealexcept in a clear case of abuse of such discretion. Missouri, Kansas & TexasRailway Co. v. Jackson, 10 Cir., 174 F.2d 297. There was no abuse of